Is America Fascist? Part 11

Next, Punishment and the Judicial System

One of the necessities in keeping prisons full when violent crime has been on the decline is make sure that you have laws in place that will keep people in prison.  It helps to have the media continue to reinforce this with their leading stories being about crimes that have been committed.  In American news, “if it bleeds, it leads.”  When the first thing you hear on the news, every night, is about crime, you believe that it is a major problem.  This makes it much easier for politicians to tell the people who are voting for them that any draconian law to keep people in prison longer will get votes. Keeping people in prison longer, must after all, make everyone safer.

Putting people in prison is considered the way that one can decrease crime.  Another way, which few people think about, is that decreasing the number of laws will also decrease crime.  One can look at Portugal’s reduction in drug laws and how that has reduced crimes and the cost of policing and the courts.  But, this is not the direction that America has chosen to take.  They see that the correction to social problems is to write laws that criminalise the social behaviours they dislike.  My favourite in this list would laws that ban sagging jeans.

There has been one hurdle to some of this law making and that has been judges.  One of their roles has been to determine if the laws being written is constitutional, or can be legally upheld so as not to violate human rights or other laws that are already in place.  This may not be as great a hurdle as one might think.  If corporations can be considered people by the Supreme Court, the best and the brightest may not be in the judiciary.  One opinion about judges from Maynard Pirsig was passed along to me by someone who studied under him at William Mitchell Law School.  Prof. Pirsig was also a temporary Minnesota State Supreme Court Justice and former dean of the University of Minnesota Law School.  His opinion was that those who studied law and got A’s became professors, B’s – prosecutors, C’s – politicians and D’s – judges.  He may have been on to something.

Having judges in the justice system that help an agenda more than hinder is important, especially to lawmakers who have an authoritarian agenda.  This is a major reason that the Republicans held fast in not approving Merrick Garland to the U.S. Supreme Court, a seat that has been open for more than a year.  They wanted someone in place that would approve their agenda.  President Trump’s pick of Neil Gorsuch for the open Supreme Court seat must make them very happy.  If his history is any indication, he will quite happily continue the government/corporate agenda that has advanced these last 37 years.  ( This is also the reason that they have held up appointments in more than 100 federal judge seats, leaving them vacant until they can get the people they want appointed.

As Billy Bragg suggests, courts are not courts of justice, they are courts of law.  If the judges that are in place are wiling to uphold the laws that are passed, even when they are draconian or racist, they are still maintaining law and order.  A fascist government will thrive on its commitment to law and order as long the judiciary is willing support and not oppose the legislation.  If these same judges are willing to look away from the abuses of the police that happen on a regular basis, then another component fascism is supported, as Attorney General Sessions has said he would do.

Holding up the confirmation of judges on federal seats creates a backlog of criminal and other cases that need to be heard.  Without enough judges to do the work, cases get delayed longer and longer.  Politicians can then claim that there is more crime in the country than there actually is, since the cases cannot be heard.  This allows for pressure to be put on the lower courts to be more decisive and also dissuades people from pushing for appeals.  A plea bargain on a crime can possibly have a person out of jail before they can get an appeal heard.  This is a very persuasive argument to someone who feels they have few options. It also works to keep for profit prisons full.

When the judges oppose the laws, or executive orders that are passed, because they are systemically racist or unconstitutional, these judges are discredited by being labeled as “activist” judges, trying to push forward their own agenda.  These judges that put up opposition can actually be a strong block on rising authoritarianism.  As America has moved more and more to the right, the numbers of these judges has decreased in the federal court system, though.


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